No shifting burden

The Employment Appeal Tribunal (EAT) has held in Efobi v Royal Mail Group Ltd that section 136 of the Equality Act does not impose an initial burden of proof on claimants to show discrimination. Instead a tribunal should consider all the evidence at the end of the hearing and decide whether or not there are facts from which it can infer discrimination. 

Basic facts 

Mr Efobi, a black African from Nigeria who worked as a postman for Royal Mail, applied for 33 IT-related jobs with the company. Although it was clear from his CV that he had a BSc Honours degree in Information Systems and qualifications in forensic computing, all his applications were rejected. 

He claimed direct and indirect race discrimination.  

Tribunal decision 

Rejecting his claims, the tribunal concluded that Mr Efobi had not proved facts from which it could conclude that there had been discrimination.  Specifically, he had not adduced any evidence to show that the successful applicants for the jobs were appropriate comparators since there was no evidence as to their race or national origin. This was in contrast to the evidence adduced by Royal Mail that Mr Efobi had not demonstrated he had the required skills on his CV which was not tainted by discrimination. Mr Efobi had not therefore established a prima facie case of discrimination. 

Mr Efobi appealed, arguing that the tribunal had wrongly directed itself in relation to the law on the burden of proof in section 136 of the Equality Act. 

Relevant law 

Section 136 states that if there are facts from which a court could decide, in the absence of any other explanation, that a person (A) contravened a provision in the Equality Act, “the court must hold that the contravention occurred”, unless A can show that they did not contravene the provision. 

EAT decision 

Allowing the appeal, the EAT agreed that the tribunal had misunderstood the meaning of the words in section 136. Rather than imposing an initial burden of proof on claimants, it did not put any burden on them at all. It was therefore misleading to refer to a shifting of the burden of proof, as this implied that Parliament required claimants to prove something, when it did not.  

Instead, tribunals are required to consider all the evidence from all sources at the end of the hearing, when making their findings of fact. If it found facts from which it could be inferred that the law had been broken, then it must hold, if there is no other explanation, that there had been discrimination. 

Although this interpretation of the burden of proof was contrary to the guidance set out in Igen v Wong, the EAT pointed out that that case had been decided on the basis of the Sex Discrimination Act (which preceded the Equality Act), which was worded differently to section 136. The EAT’s interpretation was also different to the explanatory notes to the Act, but as they were only an aid to establish contextual factors, the EAT held that they should not be treated as reflecting the will of Parliament. 

Finally, the EAT held that even if it was wrong in its interpretation of section 136, it would still have allowed the appeal as there could have been facts from which a court could have concluded that Royal Mail had discriminated against Mr Efobi. As the tribunal had failed to consider that possibility, it remitted the case to be re-heard by a different tribunal.